Children eligible for special education are protected by both federal and state law. These laws are applicable to children attending public schools; however, the public school district may also be responsible to provide certain services, often “related services” such as speech or occupational therapy, for qualified children attending private schools. For the purposes of special education, charter schools should be treated as public schools, and all of the federal and state provisions apply. However, depending on each school’s charter, the school may function as a public school under the authority of the local district or as its own public school district. The identity of the charter school’s district or local educational agency (“LEA”) as it is referred to under the law, matters when filing for due process as this is the entity that gets named as the respondent in the complaint. 23 Illinois Administrative Code §226.60.
Statutes and regulations
The statutes most commonly referenced in special education matters are as follows:
- IDEA (Individuals with Disabilities Education Act): 20 U.S.C § 1400, et seq.; 34 C.F.R. §§ 300.1 et seq.
- Section 504 of the Rehabilitation Act of 1973 (“Section 504”): 29 U.S.C. § 794; 34 C.F.R. §§ 104, et seq.
- Family Educational Rights and Privacy Act (“FERPA”): 20 U.S.C. § 1232g
Illinois State Law
- Illinois School Code: 105 ILCS 5/14-1.01 et. seq.
- Illinois Administrative Code: 23 Ill. Admin. Code §§ 226.1 et seq.
- Illinois School Student Records Act (“ISSRA”): 105 ILCS 10/1 et seq.
Key concepts in special education law
Free Appropriate Education (FAPE)
Each state is required to provide every child eligible for special education with a free and appropriate public education, including when they are expelled or suspended. An "appropriate" education is one that is designed to meet the child’s unique needs in pre-school, elementary and secondary school. School districts are not required to provide the “best” education or maximize a child’s potential, but instruction must allow a child to make “educational progress.” 34 C.F.R. §300.101(a); 23 Ill Admin Code §226.50. This applies when qualified children are between the ages of 3 and 21 years old. This requirement continues until the student graduates with a regular high school diploma, or the day before the student’s 22 birthday, whichever comes first. This means that, for early education, the State needs to make sure that FAPE is available to the child by his or her third birthday. See 34 C.F.R. §§300.101-103 and 23 Ill. Admin. Code §226.50 for more information on FAPE.
Each state is required to develop and implement a method to locate, identify, and evaluate children with disabilities that need special education or any related services. This includes homeless children, children in private schools, migrant children, as well as children who may be advancing from grade to grade. 34 C.F.R. § 300.111; 23 Ill Admin Code §226.100.
Illinois qualifies this responsibility by explaining that these methods must include:
- An annual screening for children under 5 to identify special education needs or early intervention services;
- Ongoing review of each child's performance and progress by a child’s teachers and other professional personnel; and
- Coordination with early intervention programs to ensure that the transition happens according to the federal time line.
Least Restrictive Environment (LRE)
Each state is required, to the maximum extent appropriate, to educate students with disabilities along with other students who are not disabled. Removal of disabled children should only occur when education in a general education class with the use of supplementary special education services is not appropriate. 34 C.F.R. § 300.114. States are also required to ensure that a continuum of alternative placements are available to meet the needs of children with disabilities for special education and related services. 34 C.F.R. §300.115.
Education rights holder
Under IDEA the person who holds a student’s education decision making rights in special education matters is the person who meets the definition of “parent” under 34 CFR §300.30. This includes biological and adoptive parents, as well as foster parents, an individual acting in the place of a biological parent with whom the child lives, or an individual who is legally responsible for the child’s welfare. In cases where the child is living in a youth shelter or group home, the Illinois State Board of Education (“ISBE”) will appoint a surrogate parent to make educational decisions on behalf of the minor. 23 Ill. Admin. Code § 226.550. Of course, once the student turns 18 years old, she acquires her own educational decision making authority, unless she decides to assign this authority to her parent or other adult. 23 Ill. Admin. Code §226.690, 105 ILCS §5/14-6.10.
Special education procedures and meetings
Before attending any meetings on behalf of your client, it is good practice to give the school and attorney for the district notice of your representation and intention to participate in all upcoming meetings. However, parents are not required to inform the school in advance if they intend to bring an attorney, so schools should not postpone a meeting without a parent’s consent so that their attorney can attend or hold the meeting on the condition that the parent’s attorney not participate. Letter to Andel, 116 LRP 8548 (February 17, 2016).
Requesting a CSE or FIE
A Case Study Evaluation (“CSE”) request is a request made to the school, asking that a student be evaluated for special education services. Note that the term “CSE” and “FIE” (Full Individual Evaluation) are used interchangeably.
- Who can make a request? The parent (the educational rights holder) or public agency can make a CSE request. In Illinois, an employee of a State or local educational agency, other State agency, or a community service agency may also make the request. See 23 Ill. Admin. Code 226.110(b);
- What should the request contain? A request should be made in writing and signed by the parent. Although not required, the request should also contain reasons why the student may need special education services and all areas of suspected disability;
- What happens after a parent submits a CSE request? The school has 14 school days to either grant the CSE request or to deny the request. 23 Ill. Admin. Code §226.110(c)(3). If the school agrees to conduct the CSE, it must convene a domain meeting to determine the areas (“domains”) in which the student will be tested. Once the educational rights holder signs the consent for testing, the district has 60 school days to complete the following: complete testing on the student, hold a meeting to determine eligibility, and develop an IEP if the student is determined to be eligible for special education services. 23 Ill. Admin. Code §226.110(d); and
- What happens if the school denies the CSE request? Then the school must provide the parents with notice that: describes the refused action, explains why the district will not conduct the evaluation, describes any records or reports that they used in making their determination, states the parents right to legal protections and how to obtain them, gives sources for the parent to contact to obtain assistance in understanding notice, gives a description of other options the team considered and why they were rejected, and describes other relevant factors to refusing the evaluation. 34 CFR §300.503(b). Note that schools may not use a student’s participation in RtI (“Response to Intervention) or School Based Problem Solving (“SBPS”) to deny a CSE request. See 23 Ill. Admin. Code 226.130(b).
Domain meetings and evaluations
A domain or assessment planning meeting occurs after a school has consented to a parent’s request to have her child evaluated for special education services and involves the various professionals at the school who will conduct the evaluation. At this meeting, the parent and the school personnel will discuss what information they already have about the student, and will decide the areas in which the student will be tested including but not limited to:
- cognitive testing
- academic testing
- emotional screening
- speech & language
- occupational therapy
- physical therapy
An eligibility conference occurs after the special education testing is complete. The full Team reviews the testing to determine whether the child meets the federal and/or state criteria as a child with a disability, and, as such, is eligible for special education services. Under IDEA, the “Team” must be composed of (See 34 CFR 300.321; 23 Ill. Admin. Code 226.210):
- Parents of the child
- General education teacher
- Special education teacher or provider
- Individual who can interpret evaluation results
- Representative of public agency who can make commitments for provision of resources and be able to ensure that the services in the IEP will be implemented
- Bilingual specialist or teacher if needed
- A person knowledgeable about positive behavior strategies, if behavior impedes learning
- At discretion of parent or agency, other individuals having knowledge or special expertise regarding the child
- The child where appropriate
Eligibility for special education
The IDEA has specific categories for which a student can be considered disabled. The categories are:
- Hearing Impairment
- Mental Retardation
- Multiple Disabilities
- Orthopedic Impairment
- Other Health Impairment
- Serious Emotional Disturbance
- Specific Learning Disability
- Speech or Language Impairment
- Traumatic Brain Injury
- Visual impairment, including Blindness.
See 34 CFR §300.8. All of these categories, are defined in IDEA.
However, Other Health Impairment (OHI), Emotional Disturbance (ED), and Learning Disability (LD) have nuanced definitions particular to IDEA. Children aged 3 through 9 experiencing developmental delays in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development or adaptive development, may also be eligible for special education. 34 C.F.R. §308(b).
Other Health Impairment (“OHI”)
OHI can cover multiple impairments, but by far the impairment most commonly at issue in showing OHI eligibility is AD/HD. IDEA states that other health impairment means having limited strength, vitality, or alertness, including a heightened alertness to environmental stimuli, that results in limited alertness with respect to the educational environment. The OHI must:
- Be due to chronic or acute health problems (which may include asthma, ADD, ADHD, diabetes, epilepsy, a heart condition, hemophilia, lead poisoning, leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette’s syndrome); and
- Adversely affect a child’s educational performance.
In advocating that a student is eligible for special education services under OHI, you must prove both that there is a health problem and that it is the health problem that is adversely affecting a child’s educational performance. 34 CFR §300.8(c)(9)(i-ii).
Emotional Disturbance (“ED”)
To be eligible for special education services in the ED category, a student does not need a specific diagnosis. Instead, the standard under IDEA is that a student must exhibit one or more of the following characteristics over a long period of time and to a marked degree that adversely affects a child’s educational performance:
- Inability to learn that cannot be explained by intellectual, sensory, or health factors
- An inability to build or maintain satisfactory interpersonal relationships with peers and teachers
- Inappropriate types of behavior or feelings under normal circumstances
- A general pervasive mood of unhappiness or depression
- A tendency to develop physical symptoms or fears associated with personal or school problems 34 CFR §300.8(c)(4)(i)(A-E)
Under this standard, IDEA does not state how long a “long period” of time is, but the Office of Special Education Programs indicates that it is between two to nine months. Letter to Anonymous, 213 IDELR 247 (OSEP 1989). Additionally, IDEA states that ED does not apply to students that are “socially maladjusted,” unless it is determined that they also have an emotional disturbance. 34 C.F.R §300.8(c)(4)(ii).
Learning Disability: (“LD”)
IDEA states that a student is eligible for LD if he has a disorder that affects his ability to process or understand language, either spoken or written that can affect the student’s ability to listen, read, speak, spell, write, or do math, including conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. 34 CFR §300.8(c)(10).
Understanding the theories and pitfalls for qualifying a student with LD
Traditionally, students were qualified as having a learning disability when it could be shown that there was a “severe discrepancy” between IQ and actual academic achievement. This discrepancy is defined as a 22 point difference, or 1.5 standard deviations, if using a bell curve. Under this model, you also had to show that the difference was explained by a processing disorder.
After the 2004 reauthorization of IDEA, federal law provided additional guidelines and requirements for identifying students with learning disabilities. 34 C.F.R. §§300.307-311. Under these regulations, states must adopt criteria for determining whether a child has a specific learning disability that:
- Must not require the use of a severe discrepancy between intellectual ability and achievement
- Must permit the use of a process based on the child’s response to scientific, research-based intervention, commonly referred to as Response to Intervention (“RtI”); and
- May permit the use of other alternative research-based procedures for determining whether a child has a specific learning disability. 34 C.F.R.
§300.307. In addition, the IEP team must determine that the child’s learning difficulties are not primarily the result of a visual, hearing or motor disability; mental retardation; emotional disturbance; cultural factors; environmental or economic disadvantage; limited English proficiency; or due to lack of appropriate instruction in reading or math. 34 C.F.R. §300.309.
Response to Intervention (RtI)
RtI is a general education approach to early identification and support of students with learning and behavioral needs. RtI utilizes differentiated instructional strategies for all learners and provides scientific, research-based interventions, while continuously measuring student performance and making educational decisions based on a student’s response to the interventions. Under RtI, struggling learners get interventions at increasing levels of intensity (or “tiers”) to accelerate rate of learning and performance. In 2008, Illinois created a State Response to Intervention Plan, requiring districts to develop RtI plans. Under RtI, students not making expected progress should be moved up to the next “tier” where additional supports would be implemented. Ultimately, all students not making adequate progress under the RtI tiers should eventually be referred for a special education evaluation, pursuant to the district’s “Child Find” obligations.
The failure to make progress and the data collected through RtI can be used as part of the evaluation process when determining whether a student is eligible for special education services, and is particularly necessary when evaluating for a learning disability.
One problem that has emerged in the implementation of RtI, is that there are no hard and fast timelines as to when any of this will occur and the reality is that students could get stalled in the RtI process for months or even years without an evaluation occurring. The Illinois Administrative Code makes it clear that a student’s participation in RtI should not serve as a basis to deny a CSE request, although schools routinely use this as a basis for denial anyway. See 23 Ill. Admin. Code §226.130(b). Hence, if a parent suspects that her child has a learning disability, she can request a CSE at any time, regardless of where her child is in the RtI process and the school should not use the need to “finish RtI” as a basis for denying the request.
Right to an Individual Educational Evaluation (“IEE”)
If the parent disagrees with the school’s testing, she may request an independent evaluation at public expense (“IEE”). See 34 CFR §300.502(b). In Illinois, that request must be in writing to the local school district superintendent. 23 Ill. Admin. Code §226.180(b). The school district must either grant the request in these cases or file due process against the parent within 5 days of any written parent request for an IEE to show that its evaluation was appropriate, one of the few due process situations in which the school district bears the burden of persuasion. 105 ILCS §5/14-8.02(b).
Children receiving special education must be periodically re-evaluated to ensure they remain eligible and are receiving the proper services. A re-evaluation should be conducted if the parent or teacher requests one, or if the school determines that the educational or related services needs, including improved academic achievement and functional performance, of the child warrant re-evaluation. Such re-evaluation must occur at least once every 3 years, but not more than once a year, unless the parent and school agree otherwise. 34 C.F.R. §300.303
Individualized Education Programs (IEP)
If a student is found eligible for special education at the eligibility meeting, the Team must draft an Individualized Education Program (“IEP”), a document that describes the eligibility category, performance baselines for the student, as well as services, placement, goals, and a behavior intervention plan if needed.
IEP meetings after initial eligibility
After the initial IEP, the team must meet at least annually to review the educational progress and services for a student eligible for special education and related services. IEP meetings may occur more frequently if either the parent or school has concerns about the child before the annual review date. 23 Ill. Admin. Code §226.220(b). Schools must respond within 10 days of a parent’s request for an IEP meeting. Also, an IEP can be amended without a meeting if the parent and the school agree and the team is subsequently informed of the changes. See 34 CFR §300.324(a)(4).
Components of an IEP
An IEP should include:
- Present levels of performance;
- Measurable annual goals. Goals should reflect consideration of the State Goals for Learning and the Illinois Learning Standards and include benchmarks or short-term objectives developed in accordance with the child’s present levels of performance 23 Ill. Admin. Code 226.230(a)(1);
- How the student’s disability affects his ability to access the general curriculum;
- Accommodations or modifications;
- Related services as defined under 34 CFR §300.34(a);
- Statement regarding whether the student requires “extended school year” services;
- Transition planning services, for students who are 14 1/2 , which includes postsecondary goals related to employment, education or training, and independent living and the transition services needed to assist the student in reaching those goals; and
- Transfer of rights at age 18. The student should be informed of this one year prior to the actual transfer when she is 17.
Once the IEP has been drafted, the school is required to implement it within 10 days.
Disciplining special education students
All special education students should have an IEP, which should be implemented to prevent discipline problems. If discipline issues continue to arise, convene a meeting to amend the IEP to prevent problems in the future, including conducting a Functional Behavioral Analysis (FBA) and/or completing/updating a Behavior Intervention Plan (BIP). If, despite the IEP, discipline issues continue to arise, there are guidelines and protections for special education students concerning discipline. 34 C.F.R. §300.530; 23 Ill. Admin. Code §226.400.
Change of placement
Disciplinary actions which remove a student with disabilities for more than 10 consecutive school days or for 10 days in a school year for behavior that “constitutes a pattern” are considered a change in the student’s IEP placement. See 34 C.F.R. §300.530. Before a school can enact of a change of placement, it must conduct a Manifestation Determination Review (“MDR”). Whether the school can proceed with the change of placement or disciplinary removal rests on the decision reached by the Team at the MDR.
Manifestation Determination Review (“MDR”)
Within 10 days of any decision to change the placement of a special education student, the district must hold a MDR. At the MDR, the school, parents, and IEP team review the relevant information and determine:
- If the conduct was caused by or had a direct relationship with the student’s disability;
- If the conduct was the direct result of the school’s failure to implement the student’s IEP. 34 C.F.R. §300.530(e); and
- If either of those is true, the behavior is deemed to be a manifestation of the student’s disability. In determining if the conduct was caused by the student’s disability, the Team is not limited to looking at what the student’s eligibility is based upon. The Team should consider all relevant information, including any other diagnoses the child may have, or previously unidentified disabilities. Letter to Yudien, 39 IDELR 270 (OSEP 2003).
If behavior is determined to be a manifestation
If the behavior is determined to be a manifestation of the student’s disability or the school did not properly implement his IEP, the school cannot proceed with the disciplinary action and must return the student to the placement from which they was removed. The school should instead conduct a Functional Behavioral Assessment (“FBA”) if it has not done so already, and create or amend an existing Behavior Intervention Plan (“BIP”). If the Team agrees that the student needs to be educated in a more restrictive environment such as a therapeutic day school, in order to receive FAPE, the team may make this placement.
Functional Behavioral Assessments and Behavior Intervention Plans
Functional Behavioral Assessments (FBAs) and Behavior Intervention Plans (BIPs) can and should be done for any student with a disability whose behavior impedes learning. However, they are particularly important for students facing disciplinary actions for their behaviors. FBAs involve observing the student and discussing “target behaviors” to try to determine the possible antecedents, motivations, and other circumstances or reasons leading to the behavior in question. BIPs then take the data from the FBA to develop a clear outline for what the school will do to prevent the specific target behavior, and how the school will react if the behavior occurs. This can include incentives for the student, teaching the student more appropriate replacement behaviors, and addressing the antecedents to behaviors.
If behavior is determined to not be a manifestation
If the behavior is determined to not be a manifestation of the student’s disability and the school properly implemented his IEP, then the school can discipline the student just like any other student. However, the district must continue providing special education services throughout this process, even in the case that the student is expelled. These services can be in an alternative school, therapeutic school, or through tutoring, but must enable the child to continue to participate in the general education curriculum and to progress toward meeting the goals set out in the child’s IEP. 34 C.F.R. §300.530(d)(4).
Protections for students not yet determined eligible for special education
Students not yet found eligible for special education may still be protected by IDEA under certain circumstances if the school had knowledge that the student was a student with a disability prior to the incident that led to the discipline. Schools are deemed to have knowledge if:
- The parent stated in writing to a supervisor, administrator or teacher that child may need special education;
- The parent requested an evaluation; and
- A teacher or staff member expressed specific concerns about the child’s pattern of behavior directly to the director of special education or other supervisory person. 34 C.F.R. §300.534.
However, schools are not deemed to have knowledge that a student has a disability if the parent has not allowed an evaluation or has refused special education services, or if the child has been evaluated and determined not to be a child with a disability. 34 C.F.R. §300.534(c).
Emergency 45 day removals
Under special circumstances, a school can remove a special education student for up to 45 school days without regard for whether the behavior is a manifestation of the student's disability. If the student:
- Carries a weapon or possesses a weapon at school, on school premises, or on the way to or at a school function. “Weapon” has the meaning given to the term” dangerous weapon” under 18 U.S.C. §930(g)(2), and includes instruments that are used for or readily capable of causing death or serious bodily injury, but does not include a pocket knife with a blade of less than 2 ½ inches in length;
- Knowingly possesses or uses illegal drugs, or sells or solicits the sale of a controlled substance, while at school on school premises, or on the way to or at a school function. “Illegal drug” includes controlled substances under federal law, but does not include substances legally possessed or used under the supervision of a licensed health-care professional; and
- Has inflicted seriously bodily injury upon another person while at school, on school premises, or on the way to or at a school function. “Serious bodily injury” has the meaning given in 18 U.S.C. §1365(h)(3) and includes substantial risk of death, extreme physical pain, protracted and obvious disfigurement, and protracted loss or impairment of the function of a bodily member, organ, or mental function. 34 C.F.R. §300.530.
Special education remedies
There are two standard remedies for a special education case: filing a compliance complaint with the Illinois State Board of Education (“ISBE”) or requesting an administrative due process hearing to address matters of dispute with the local school district. Appeals from adverse due process decision may be brought in state or federal court.
- The statement that the school has violated a requirement of IDEA Part B;
- The facts that support this;
- The violations alleged with the specific child;
- The name and address of the child and the school they attend if for a specific child;
- The signature and contact information of the person sending the complaint;
- A description of the problem of the child, including facts; and
- A proposed resolution.
Request for due process hearing
- The name of the child
- The address where the child lives
- The name of the school the child attends
- A description of the problem, including specific facts
- A proposed resolution to the problem. 34 CFR §300.508(b)
Within 15 days of receiving the due process complaint, the school must convene a resolution meeting with the parent and the IEP team. 34 CFR §300.510(a). The school is not permitted to bring an attorney unless the parents have an attorney. 34 CFR §300.510(a). However, the meeting does not need to be held if both the parent and the school agree to waive the meeting or agree to use mediation. 34 CFR §300.510(a)(3).
Appeal of a due process hearing decision
Common problems and concerns
Students overlooked for special education
Students with behavioral problems are often overlooked for special education. School professionals often consider the student’s behavior to be a “choice” rather than a manifestation of their disability. Disabilities that are commonly associated with behavioral problems are LD, ED, and OHI. These behaviors frequently have a detrimental effect on the student’s education, emphasizing the need for special education services for students with these disabilities.
Students transferring districts with out-of-district IEP
If a student transfers from out-of-district, the school has two options. It may either:
- Adopt the old IEP and implement it as it is written. This can happen without an IEP meeting as long as the educational rights holder agrees; and
- Develop a new IEP. The school must notify the parents and get a date for an IEP meeting within 10 days after the student’s enrollment. During this time, the school must be providing services comparable to that which are stated in the previous IEP. This is the option the school must follow if the student is transferring from out of state. See 23 Ill. Admin. Code §226.50.
Student not making progress
If the student is not making progress under the current IEP, consider these options:
- Convening an IEP meeting to amend the current IEP
- Creating a BIP for the IEP if he does not already have one
- Have the school’s behavioral therapist or expert observe him in the classroom so that she can recommend amendments to the IEP and BIP
- Consider a change of placement to something more restrictive
Special education terminology
- ADA: Americans with Disabilities Act
- AT: Assistive technology
- BIP: Behavioral Intervention Plan
- CPS: Chicago Public Schools
- CSE: Case Study Evaluation
- ED: Emotional disturbance
- FAPE: Free and Appropriate Public Education
- FBA: Functional Behavioral Assessment
- FIE: Full Individual Evaluation
- HO: Hearing officer
- IDEA: Individuals with Disabilities Education Act
- IEE: Independent Educational Evaluation
- IEP: Individualized Educational Program
- ISBE: Illinois State Board of Education
- LD: Learning disability
- LEA: Local educational agency
- LRE: Least restrictive environment
- MDR: Manifestation Determination Review
- OHI: Other health impairment
- OT: Occupational therapy
- PHC: Pre-hearing conference
- RTI: Responses to scientific, research-based interventions
- TDS: Therapeutic Day School